HOANG BICH NGOC v. TORTURE CLAIMS APPEAL BOARD/ NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL 739/2021

[2021] HKCFI 2603

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 739 of 2021

Application for Leave to Apply for Judicial Review

NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

	consideration of documents only; or
	consideration of documents and Applicant being absent in open court;

Leave to apply for Judicial Review be refused.

Observations for the Applicant:

THE APPLICATION

1.  The applicant applies for leave to apply for judicial review of the Decision dated 5 January 2021 of the Torture Claims Appeal Board/Non-refoulement Claims Petition Office (“the Board’s Decision”). Her application is out of time.  This issue will be dealt with below.

2.  Pursuant to Order 20, rule 8 and Order 53, rule 3(6) of the Rules of the High Court, Form 86 is amended to the effect that the proposed respondent is the Torture Claims Appeal Board/Non-refoulement Claims Petition Office and the interested party is the Director of Immigration (the “Director”).

3.  The applicant did not request an oral hearing.  Pursuant to Order 53, rule 3(3) of the Rules of the High Court (“RHC”).  Her application is therefore dealt with on the papers.  According to the record, she is being detained in the detention centre of the Immigration Department.

The applicant

4.  The applicant is a citizen of Vietnam.  She came to Hong Kong on 6 May 2019 illegally and was arrested by police.  She lodged non-refoulement claim with the Immigration Department by 2 written significations respectively dated 14 May 2019 and 21 May 2019 through her duty lawyer.

5.  The applicant claimed that, if refouled, she would be harmed by her creditor because she was unable to repay her loan of 350 million of Vietnamese currency for her restaurant business, which failed.  The creditor had brought 10-20 people to her home and demanded payment.  When she was unable to pay, they threatened to kill her and to chop her limbs off.  She was also slapped on the face.  She reported the matter to police, which did not make investigation.  She had to move to live in her friends’ places.  However, she saw the creditor’s people around and she slipped away.  Finally, she decided to come to Hong Kong to avoid the creditor.  Details of her story are set out in paragraph 6 of the Director’s Decision described below.

The Director’s Decision

6.  The Director considered her application in relation to the following risks:

a.  risk of torture under Part VII C of the Immigration Ordinance, Cap. 115, (“the Ordinance”) (“Torture risk”);

b.  Article 2 of Section 8 of the Hong Kong Bill of Rights Ordinance, Cap. 383 (Risk of violation of the right to life) (“BOR 2 risk”);

c.  risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of the HKBOR (“BOR 3 risk”); and

d.  risk of persecution by reference to the non-refoulement principle under Article 33 of the 1951 Convention relating to the Status of Refugees and its 1967 Protocol (“Refugee Convention”) (“Persecution risk”).

7.  By Notice of Decision dated 26 July 2019 (“the Director’s Decision”), the Director refused her claim for the reason that it was not substantiated.  The Director found that the level of risk of her being harmed by the creditor if she returned to Vietnam was assessed to be low [10]; that reasonable state protection would be available to her [17] and that internal relocation was an option open to her [18].

The Board’s Decision

8.  The applicant appealed to the Board against the Director’s Decision.  She appeared before the adjudicator of the Board on 7 July 2020.

9.  The Board, having considered her evidence, rejected her appeal and affirmed the Director’s Decision.  At paragraph 37 of the Board’s Decision, the Board concluded:

“The number and nature of inconsistencies and implausibility in her evidence were serious and have undermined its reliability. On the totality of the evidence, I am not convinced that she came to Hong Kong because of the alleged threat to harm her by the creditor. I am not convinced that she had suffered any severe physical or mental pain and suffering as she had alleged or at all. I am not convinced that after over one year the creditor and his followers, if they ever were, are still chasing the Appellant all over her home country and want to harm her. The centerpiece of her story does not stand. I find her dishonest and unreliable, and that she is not a genuine claimant.”

Application for leave to apply for judicial review of the Board’s Decision

10.  The applicant has filed Form 86 on 21 May 2021 to apply for leave to apply for judicial review of the Board’s Decision.

11.  In her affirmation in support of her application, the applicant said that she wanted judicial review for her non-refoulement claims decision against the Board [director of the immigration].

DISCUSSION

12.  As mentioned in paragraph 1 above, the applicant’s application is out of time -  the date of the Board’s Decision being 5 January 2021 and Form 86 being 21 May 2021.

13.  The Court shall, nevertheless, consider the factors as set out in AW v. Director of Immigration and William Lam [2016] 2 HKC 393 at para. 27(3) in considering if extension of time should be extended: (1) the length of delay; (2) the reasons for the delay; (3) the prospect of the intended appeal; and (4) the prejudice to the putative respondent if extension of time was granted.  I shall first consider the merits of the case.

14.  In Re Adumekwe Rowland Ejike [2019] HKCA 702 held:

“19. The prospect of success of the intended appeal is important: the court will not grant extension for a hopeless appeal to be pursued, see Re Rahman Wasif [2019] HKCA 299 at [13]; Re Kpamou Gbotoi Bernard [2019] HKCA 168; and Re Irshad Muhammad [2018] HKCA 864 at [16].”

15.  I shall, first of all, consider the merit of the case.

16.  The role of this Court is supervisory, meaning that it ensures that the Board complied with the public law requirements in coming to its Decision on the applicant’s appeal.  The Court will not usurp the fact finding power vested in the Director and the Board.  See TK v Michael C Jenkins Esq and Director of Immigration [2013] 1 HKC 526 CA. §40 and Nupur Mst v Director of Immigration [2018] HKCA 524 §14 (1).

17.  The Court will bear in mind that the Board’s Decision should be examined with rigorous examination and anxious scrutiny.

18.  In Re: Kartini [2019] HKCA 1022, 9 September 2019, the Court of Appeal held:

“13. (1) … …Assessment of evidence and COI materials and risk of harm, state protection and viability of internal relocation are primarily within the province of the Board (and the Director). The court will not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision of the Board.

19.  The applicant’s reason in her affirmation does not assist her application.

20.  The Court does not find any error of law or procedural unfairness in the Board’s Decision.  The findings of the Board are not in any respect open to challenge as Wednesbury unreasonable or irrational.

21.  The applicant fails to show that she has any realistic prospect of success in her proposed judicial review.

CONCLUSION

22.  I refuse to grant leave for the applicant to apply for judicial review of the Board’s Decision.  Accordingly, I dismiss her application.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1